The underlying summary nonpayment proceeding was commenced by WINDEMERE OWNERS, LLC (Petitioner) against BIZU RIKI MULLU (Respondent), the Rent Stabilized tenant of record based on allegations that Respondent failed to pay rent that was past due for 666 West End Avenue, Apt 16L, New York, NY 10025 (Subject Premises).

PROCEDURAL HISTORY

Petitioner asserts an oral demand for the rent was made. The petition is dated December 24, 2012, and seeks $7750 in arrears for a period from June 2012 through December 2012 at a monthly rate of $1,000.00 per month. Respondent appeared pro se and filed an answer on January 24, 2013. The proceeding was originally returnable on February 4, 2013. On March 1, 2013, counsel for Respondent appeared, and made a motion for summary judgment and related relief. On July 30, 2013, the court heard argument and reserved decision on the motion.

PRIOR RELATED PROCEEDINGS

Windemere v. Sucharewicz Index Number 63654/2011

Petitioner commenced this summary holdover proceeding against the prior tenant of record based on non-primary residence. Respondent was named and sued as an undertenant. Petitioner issued a notice of termination dated January 20, 2011. The notice asserted that Respondent was living in the Subject Premises as an unauthorized occupant, and that she had attempted to tender rent for the Subject Premises that Petitioner had refused. That proceeding was initial returnable in April 2011.

The named tenant never appeared in that proceeding. Respondent appeared through counsel and asserted a written answer. The answer asserted inter alia that Respondent had been the sole occupant of the Subject Premises since November 2008, that Petitioner was aware of said fact and that Petitioner had accepted rent from Respondent through December 2010. The answer also asserted illusory tenancy and rent overcharge.

On October 5, 2011, the parties through counsel submitted a stipulation discontinuing said proceeding without prejudice. By that date Petitioner had already started a second holdover proceeding against the same parties for the same cause of action.

Windemere Owners LLC v. Sucharewicz, Index Number 82557/2011

In the second proceeding, Petitioner relied on the same notice of termination dated January 20, 2011. The proceeding was initially returnable October 4, 2011. Respondent appeared through counsel and filed a written answer, asserting she was the permanent regulated tenant by virtue of having resided in the Subject Premises for at least six months and having requested a lease, Respondent also asserted rent over charge and illusory tenancy.

On November 30, 2011, Respondent moved for summary judgment. The motion a asserted that Respondent was the permanent regulated tenant of the Subject Premises.

Respondent submitted an affidavit asserting the named tenant had permanently vacated in 2006, and that since November 2008 she had tendered rent which Petitioner had accepted. Respondent's motion was supported by copies of cancelled checks Petitioner had cashed from her for rent from December 2008 through November 2010.

Petitioner never filed opposition papers to said motion. Instead the parties entered into a stipulation dated March 28, 2012, marking the proceeding off calendar, pursuant to a stipulation which provided that if Petitioner failed to serve opposition papers within 45 days the proceeding would be deemed withdrawn without prejudice.

Petitioner never filed any opposition papers and the proceeding was never restored. This proceeding followed.

DISCUSSION

Respondent's motion for leave to serve an amended answer is granted on consent. The amended answer is deemed served and filed.

Respondent had moved to dismiss based on the fact that there is no lease agreement between the parties, but withdrew that branch of the motion on the record. The petition alleges that Respondent is in possession pursuant to a written lease agreement, but Petitioner acknowledges that this is false and Respondent has never been provided with a written lease agreement. Petitioner however has not cross-moved to correct said defect.

Respondent seeks summary judgment in part based on the uncontested claim that the rent sued for has been offered and refused. Petitioner fails to address this claim at all in its opposition papers, therefore the court must accept as an uncontested fact that the rent was offered and returned. Annexed to Respondent's moving papers is Petitioner's breakdown of rent arrears as of January 2013 (Ex H). This starts with a zero balance prior to December 2010 and shows a payment for each month in the amount of $1000, including the months sued for in the petition, except the months of December 2010 through May 2011 and the month of January 2012. Respondent shows proof that rent was tendered for each of these months, with the exception of January 2012, and that Petitioner returned the rent for each of the months.

Specifically, on February 7, 2011, Petitioner's counsel rejected and returned three checks from Respondent for rent, check number 249 dated December 1, 2010, tendered for December 2010 rent, Check number 132 dated January 1, 2011, tendered for January 2011 rent, and a third check. In June 2011 another three rent checks were rejected by Petitioner because Petitioner did not recognize Respondent as the tenant of record, all three being bank checks for $1000 each for March-May 2011.

Moroever, Petitioner, in arguing that the $1000 rent is legal in this case asserts that based on the fact that Petitioner has alleged it has registered Melody Sucharewicz as the tenant of record in 2011 and 2012 with DHCR in the annual rent registrations. Thus, even now, in this proceeding, Petitioner denies Respondent was the tenant of record before 2012, but sues for rent from 2010. Rent which it is uncontested has been offered and refused.

Respondent argues that the foregoing uncontested facts preclude Petitioner from maintaining a summary proceeding for the failure to pay rent for these months and that Petitioner is relegated to a plenary action for said claims.

In Janes v. Paddell 74 Misc. 409 (App Term, 1911) the court held that where a tenant continuously offered to pay rent, but the landlord refused to accept the same, he could not maintain summary proceedings to recover possession for nonpayment of rent. In that case there was also an issue regarding election of remedies, which is not present in the case at bar, but the court irrespective of said issue still addressed the tender and refusal of rent as a defense to a summary nonpayment proceeding.

The court held in pertinent part "... a landlord cannot be permitted to refuse rent from the tenant, and then dispossess the tenant for the nonpayment of the rent. The tender of the rent is under such circumstances equivalent to performance of the condition to pay rent." The court went on to conclude:

In view of the tender and willingness to pay the rent and the repeated refusals to accept it by the landlord, we think that it is evident that she should not be permitted to predicate proceedings to dispossess the tenant upon the fact that the rent has not been paid.

Id at 416.

Similarly in 16 Apartment Associates Inc. v. Lewis 24 Misc3d 127(A) the court found that based on the refusal of the landlord to accept DSS checks, the landlord failed to establish a default in rent and the nonpayment proceeding could not be maintained pursuant to RPAPL 711(2) (see also Matter of Albany v. White 46 Misc2d 915 holding proper tender of rent bars entry of a final judgment).

Based on the history of the rejected payments, and the uncontested facts that the rent sought was timely tendered and refused, the court finds that Petitioner has forfeited the right to maintain this nonpayment proceeding for all months sued for except January 2012. Put otherwise out of the 7 months of arrears alleged due, Respondent has established a defense to all but one month.

Respondent asserts there was no proper rent demand and this requires dismissal of the proceeding. Petitioner submits an affidavit from Besin Beskovic, who asserts he personally demanded $8000 in rent from Respondent at the Subject Premises on December 13, 2012. Assuming that said demand was made, which Respondent disputes, such a demand would be an invalid predicate for this proceeding as in December 2012 Petitioner only had the right to seek one month of arrears in this summary proceeding.

Based on all of the foregoing, Respondent's motion for summary judgment is granted and the proceeding is dismissed.